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Parody vs. Derivative Works

Chilling Effects FAQ on derivative works.

Question: Can I take a character from a movie, like Chewbacca from Star Wars, and use it in a play with a very different plot and otherwise different characters?

Answer: Probably not. The people who hold copyright in Star Wars own the characters as well as the plot, the filmed images, etc. Placing a distinctive fictional character in a different context or medium is still copying that character, and therefore infringement. However, if you use the character for the purposes of parody or criticism you might be making a legitimate fair use of the character. Note that in one case involving Walt Disney, Inc. and a comic book publisher, the comic book publisher argued that his use of the images of Mickey Mouse, Minnie Mouse and Donald Duck was satirical, and therefore fair use. The Ninth Circuit rejected the fair use argument, reasoning that the comic book took more of the images than was necessary to suggest the characters in the minds of the readers and therefore exceed the bounds of fair use. See Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (9th Cir. 1978).

My snarky analysis: The word parody is unclear here. It doesn’t necessarily mean mockery or satire, but it implies interpretation or imitation. Therefore, a pornographic version of Star Wars would be a protected parody, while a person writing a sequel to Star Wars would probably not enjoy the protections due to parody. See my essay What Killed Postmodernism? See also one person’s expert analysis of the issues involved (whose website forbids any quoting). See also this pointed analysis of derivative works at Funny Strange. Sarah Ovenall writes:

There is a doctrine called “de minimis”, which states that copyrighted material can be used in a derivative work without permission, if only a minimal amount of the original work is used. This sounds like it should be the answer for collage artists. Unfortunately, the law is rather vague on this point. There’s no clear definition of how much is too much, either in terms of a percentage, or total words or square inches. Even a tiny amount of copied material can exceed “de minimis” if it comprises the essential part of either the original work, or the derivative work.

Finally, from ibiblio, a batch of legalese to protect you from anything and everything:

This product is meant for educational purposes only. Any resemblance to real persons, living or dead is purely coincidental. Void where prohibited. Some assembly required. List each check separately by bank number. Batteries not included. Contents may settle during shipment. Use only as directed. No other warranty expressed or implied. Do not use while operating a motor vehicle or heavy equipment. Postage will be paid by addressee. Subject to CAB approval. This is not an offer to sell securities. Apply only to affected area. May be too intense for some viewers. Do not stamp. Use other side for additional listings. For recreational use only. Do not disturb. All models over 18 years of age. If condition persists, consult your physician. No user-serviceable parts inside. Freshest if eaten before date on carton. Subject to change without notice. Times approximate. Simulated picture. No postage necessary if mailed in the United States. Please remain seated until the ride has come to a complete stop. Breaking seal constitutes acceptance of agreement. For off-road use only. As seen on TV. One size fits all. Many suitcases look alike. Contains a substantial amount of non-tobacco ingredients. Colors may, in time, fade. We have sent the forms which seem right for you. Slippery when wet. For office use only. Not affiliated with the American Red Cross. Warranty void if serviced by non-authorized personnel. Drop in any mailbox. Edited for television. Keep cool; process promptly. Post office will not deliver without postage. This can contains a head-enhancing device; do not shake vigorously. List was current at time of printing. Return to sender, no forwarding order on file, unable to forward. Not responsible for direct, indirect, incidental or consequential damages resulting from any defect, error or failure to perform. At participating locations only. Not the Beatles. Don’t try this in your living room; these are trained professionals. Penalty for private use. See label for sequence. Substantial penalty for early withdrawal. Do not write below this line. Falling rock. Lost ticket pays maximum rate. Nap was here. Your canceled check is your receipt. Add toner. Ceci n’est pas une pipe. Place stamp here. Avoid contact with skin. Sanitized for your protection. Be sure each item is properly endorsed. Sign here without admitting guilt. Out to lunch. Slightly higher west of the Mississippi. Employees and their families are not eligible. Beware of dog. Contestants have been briefed on some questions before the show. Limited time offer, call now to ensure prompt delivery. You must be present to win. No passes accepted for this engagement. No purchase necessary. May be hazardous to health if consumed in excessive quantities. Not responsible for typographical errors. No returns unless defective. Processed at location stamped in code at top of carton. Don’t even think about parking here. Shading within a garment may occur. Use only in a well-ventilated area. Keep away from fire or flames. Replace with same type. Do not put the base of this ladder on frozen manure. Approved for veterans. Booths for two or more. Check here if tax deductible. Some equipment shown is optional. Price does not include taxes. No Canadian coins. Not recommended for children. Under penalty of law, this tag not to be removed except by consumer. Prerecorded for this time zone. Reproduction strictly prohibited. No solicitors. No alcohol, dogs or horses. No anchovies unless otherwise specified. Restaurant package, not for resale. List at least two alternate dates. First pull up, then pull down. Call toll free number before digging. Driver does not carry cash. Some of the trademarks mentioned in this product appear for identification purposes only. Objects in mirror may be closer than they appear. Record additional transactions on back of previous stub. Unix is a registered trademark of AT&T. Do not fold, spindle or mutilate. No transfers issued until the bus comes to a complete stop. Package sold by weight, not volume. Your mileage may vary. This supersedes all previous notices.

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